Using Debunked Studies To Spread FUD About File Lockers

[Mike]

The "Washington Legal Foundation" claims to be a legal shop filing lawsuits to protect "free enterprise" and to fight needless government regulation. In the past, the organization has been closely associated with funding from Big Tobacco, and if you look at it's recent litigation efforts, it's almost all in support of Big Pharma and Big Copyright. They helped out on the Aereo case, for example, and sided with Monsanto in its (victorious) case arguing that planting your own seeds can be infringing patents. For a group that claims to be about getting government off your back and supporting free enterprise, it seems somewhat ironic that it appears to so strongly support centralized, government-granted monopolies in the form of copyrights and patents.

Either way, WLF's Glenn Lammi recently wrote a piece for Forbes (which, these days, lets basically anyone with an agenda publish), arguing that cyberlockers are evil because they're all about raking in the big bucks from infringement. The article is sloppy and not particularly well argued, in part because it relies heavily on two recent studies (funded by the industry) that have already been debunked. Lammi ignores that part, because it doesn't fit with his narrative.

You know it's going to be a bad argument when it trots out this classic trope:

“Information wants to be free” is a standard rejoinder to criticism of online entertainment piracy

Except, no, it's not the standard rejoinder. These days, it's mainly used as a strawman by people like Lammi who don't want to deal with actual arguments that are being made. Lammi goes on:

Such a sentiment may motivate some copyright thieves, but profit, not ideology, drives the proprietors of “ cyberlockers” whose business is trafficking pirated entertainment content. A recent study by the Digital Citizens Alliance (DCA)—”Behind the Cyberlocker Door“— has laid bare that reality. These websites generate profit margins that lawful businesses can only dream of, and they do so on the backs of countless workers in the music, movie, and television industries.

Of course, as we've noted for years, if cyberlockers were really so profitable, then shouldn't the response from the entertainment industry be to offer up such services themselves? Lammi, of course, leaves out that the DCA study was commissioned by the industry and that the methodology was so ridiculous that at least one company branded a "piracy haven" has already demanded a retraction of the report and an apology, claiming the report is defamatory. The methodology is clearly bogus. For example, it called Mega.co.nz a piracy haven because the researchers apparently have no idea how it works:

For Mega the researchers looked at 500 files that were shared online. However, the overwhelming majority of Mega’s files, which number more than 500,000,000, are never shared in public.

Unlike some other sites in the report, Mega is a rather traditional cloud hosting provider that’s frequently used for personal backup, through its desktop client or mobile apps for example. The files that are shared in public are the exception here, probably less than one percent of the total.

And yet, DCA's bogus methodology insisted that the majority of files on Mega were infringing. Because they don't even understand how it works. That does not give confidence in the study -- or the fact that WLF is relying on it. Then there's the second study:

A recent KPMG study found that nearly all of the most popular TV shows and movies of the past three years (which are, not surprisingly, also the most pirated), are available through video-on-demand services.

Except, as discussed, that's totally misleading. What the study found was that all of those works were available on at least one of 34 different services. Of course, if you don't use all of those services, you might not be in luck. In fact, buried deep in the report was the more telling stat that if you used the most popular movie/TV service out there, Netflix, less than 20% are available. So, uh, no, contrary to Lammi's attempt to argue that the industry has done it's part, it has not.

A vigorous debate has developed in recent years over numerous aspects of copyright protection. There can be little doubt, however, that cyberlockers are profitably inducing copyright infringement on a massive scale. The discussion should thus not be over whether infringement is occurring, but what measures legitimate businesses can take to deter and stop it.

Actually, there can be plenty of doubt over that claim. Many of those sites rely on advertising, and anyone in the ad business knows that online ad rates are dropping precipitously, and many ad systems rely on clickthroughs. The folks surfing cyberlockers for free movies aren't exactly the kind of folks who click on ads. In fact, a lot of them likely use ad blockers. Yes, some cyberlockers make money from membership fees, but that just shows why the industry should be supporting authorized services like Netflix that provide a better service. And yet they don't.

There are reasonable debates to be had here, but if you're basing your arguments off of debunked studies, don't expect to be taken seriously.

Originally Published: Wed, 08 Oct 2014 18:05:54 GMT
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